**Review was granted by the California Supreme Court on July 23, 2008 and this opinion was depublished.**

By Katherine J. Hart

This case addresses the issue of whether or not the legal effect of a notice of determination (“NOD”) in establishing a 30-day statute of limitations is absolute as to any and all CEQA based claims. In the opinion of the Court of Appeal, 6th appellate district, claims alleging that the agency failed to conduct environmental review but should have are governed by a separate 180-day limitation period.


In December 2005, the Santa Clara County Board of Supervisors ("County") approved an Agreement for Trail Easements ("Agreement") between it and Stanford University, which was intended to satisfy condition of approval I.2 of Stanford’s General Use Permit issued by the Board in December 2000 (the "GUP").

In the Committee for Green Foothills v. Santa Clara County Board of Supervisors and Board of Trustees of the Leland Stanford Junior University (2008) 161 Cal. App. 4th 1204 (Cal. App. 6th Dist. 2008) case, the Committee for Green Hills ("Petitioner") sued alleging the County’s approval of the Agreement permitted the relocation of segments of the C1 trail outside of the County without any environmental review and therefore, violated CEQA. Petitioners further alleged that "the Agreement does not result in full compliance with the permit condition since the Agreement does not result in the construction of the C1 Trail designated in the County Master Trails Plan as required by GUP Condition I.2."

The County and Stanford responded with a demurrer on the grounds that the Petitioners failed to state a cause of action in that Petitioners did not timely file their petition under Public Resources Code section 21167(c) and (e) – a 30-day statute of limitations, and by Government Code section 65009(c) – a 90-day statute of limitations.  In their reply, Petitioners argued that Section 21167(a) applies a 180-day statute of limitations to the claims at issue and that Section 65009(c) had no applicability since the GUP was merely being enforced, not amended or reconsidered.

The trial court agreed with the County and Stanford and granted the demurrer without leave to amend. The Court of Appeal (Sixth District), however, reversed as to the applicability of 21167 in favor of Petitioner, finding that "there is a reasonable possibility that the [Petitioners] can allege facts sufficient to bring this proceeding within the purview of section 21167, subdivision (a), that is that Board approved changes and subsequent activities with respect to the C1 Trail alignment that ‘may have a significant effect on the environment without having determined whether the project may have a significant effect on the environment’".  The Court rejected the Respondents’ claim that the 90-day statute of limitations in Government Code section 65009(c) applied to bar the Petitioners’ action and remanded the case to the trial court to vacate its earlier decision and grant Petitioners leave to amend their pleadings based upon the alleged failure of the County to conduct CEQA review.  


Condition I.2 of the GUP required that Stanford "dedicate easements for, develop, and maintain the portions of two trail alignments which cross Stanford lands shown in the 1995 Santa Clara Countywide Trails Master Plan (Routes S1 and C1)."  Route S1 was not challenged in this action.

The Agreement essentially realigned the trail routes so that portions of Route C1, in particular, would be located within San Mateo County and the Town of Portola Valley, so long as the named jurisdictions cooperated. The resolution adopted by the County declared that the Agreement satisfied GUP Condition I.2.  Admittedly, alternatives for the C Route were not studied for their potential environmental impacts due to the uncertainty of where the routes would be located, but the Board approved the Agreement pertaining to the C1 alignment as satisfying the GUP Condition I.2 stating that:

…the County’s approval of the Agreement for Trail Easements does not constitute County approval of construction, operation or maintenance of specific trail improvements along those routes. The Agreement for Trail Easements contemplates that, prior to any trail improvements, detailed construction plans will be reviewed and considered by the jurisdictions of San Mateo County, Town of Portola Valley and Town of Los Altos Hills, and that those jurisdictions will have discretion to consider whether and how to improve trail improvements.

The Board of Supervisors obligated Stanford to provide requisite funds and easements to the jurisdictions to ensure the trail was completed. Alternatively, if the named jurisdictions did not enter into agreements to permit the construction of the trail, Stanford was to pay the County, which would in turn, use the funds – in an unspecified way – to mitigate the adverse effects on recreational opportunities for existing or new campus residents and users that would be caused by the larger project under the GUP. With that, the Board determined no further CEQA review of Route C1 was required prior to the execution of the Agreement.

Two NOD’s were posted for the approval of the Agreement. The first NOD did not include a reference to the C1 trail alignment and the only CEQA review mentioned concerned the S1 trail alignment. The second NOD was posted on December 20, 2005 and changed the project description to include the Board’s actions with respect to the C1 and C2 trail alignments. The later NOD referenced the EIR for the S1 Trail Alignment, the 2000 GUP EIR and the Countywide Trails Master Plan EIR/SEIR as supporting CEQA documents.

Petitioners’ lawsuit was filed after the 30-day period following the second NOD, but within 180 days of project approval.


This decision is all about the pleadings, and whether or not Petitioners should have their day in court. Essentially, the court determines petitioners should be allowed to allege facts that the agency was obligated to perform environmental review based upon potential impacts on the basis that the lead agency deferred CEQA analysis on the C1 trail changes while arguably making a commitment to the project through the Agreement. This type of claim would not be automatically barred by the use of a NOD with its 30-day statute of limitations. Rather, this claim was governed by Public Resource Code section 21176(a), and petitioner had 180 days within which to file its action. Whether petitioner can prove this allegation at trial remains to be seen.

The $1,000,000 question is what would have happened if the County had just filed a Notice of Exemption.

Kate Hart is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.